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Consumer Protection and

the Criminal Law
Law, Theory, and Policy in the UK
Peter Cartwright

iii

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PUBLISHED BY THE PRESS SYNDICATE OF THE UNIVERSITY OF CAMBRIDGE

The Pitt Building, Trumpington Street, Cambridge, United Kingdom

CAMBRIDGE UNIVERSITY PRESS

The Edinburgh Building, Cambridge CB2 2RU, UK

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http://www.cambridge.org

Cambridge University Press 2001

This book is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.
First published 2001
Printed in the United Kingdom at the University Press, Cambridge
Typeface Plantin 10/12 pt.

System LATEX 2 [TB]

A catalogue record for this book is available from the British Library
Library of Congress Cataloguing in Publication data
Cartwright, Peter.
Consumer protection and the criminal law : law, theory, and policy in the
UK/Peter Cartwright.
p. cm.
Includes bibliographical references and index.
ISBN 0 521 59080 9 (hardback)
1. Consumer protection Law and legislation Great Britain Criminal
provisions. I. Title.
KD2204 .C37 2001
343.41070 1dc21

2001025437
ISBN 0 521 59080 9 hardback

iv

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Contents

Preface
Acknowledgements
List of abbreviations
1

Consumer protection rationales

page ix
xii
xiii
1

2 Techniques of regulation

40

3 The role of criminal sanctions in consumer protection

63

4 The use of the criminal law

87

5 Consumers and safety: the protection of physical integrity

126

6 The protection of economic interests

156

7 The enforcement of regulatory consumer law

212

8 Conclusions

244

Index

250

vii

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Consumer protection rationales

Introduction
Laws have been used to protect consumers for centuries. These laws
have drawn on a variety of legal forms, including criminal law, tort,
and contract, to achieve their objectives. In addition to those laws that
specify consumer protection as their primary concern, numerous other
provisions have the effect of protecting the consumer, for example by
streamlining the prosecution of fraud, protecting property, or facilitating
litigation.1 As a result, the boundaries of consumer protection law are not
easily drawn. This book is concerned primarily with those laws that have
consumer protection as their main objective, and which use the criminal
law to achieve this objective.2
This chapter examines the role of law in consumer protection, focusing
upon the objectives of consumer protection. In order to achieve this, we
need to consider a number of matters. First, we need to identify the consumer whom we are concerned to protect. Secondly, we need to consider
the relationship between consumer protection and the market economy.
It is sometimes argued that the state, through the law, should play only a
restricted role in protecting consumers, because consumer protection is
most effectively achieved by the operation of free and open markets. Law
should be used to ensure that the markets function as freely as possible.
Where markets do not work perfectly, the law should intervene to address this failure, provided this can be done cost effectively. Thirdly, this
chapter will consider the extent to which consumer protection should
concern itself with social, non-market-based goals. While accepting the
importance of market and social goals, it is argued that the distinction
between the two is not clearly drawn, and that some approaches could be
viewed under either heading. Using the language of efficiency and equity
1
2

See for example, the Misrepresentation Act 1967, the Theft Act 1968, and the Civil
Procedure Rules 1998 (as amended).
It is recognised that many of these statutes will have additional aims, in particular, the
protection of honest traders and the encouraging of fair competition.

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rather than market and social goals, Ramsay observes that [a]n efficient
policy is ultimately justified by equity since consumers are able to obtain
goods and services of a quality, on terms, and at the price that they are
willing to pay.3 Although helpful for the purposes of structure, the market/social distinction is imperfect in practice. The chapter concludes that
the market, underpinned by private law, is an important technique for
ensuring that consumers are able to purchase the goods and services that
they want, and that intervention which helps the market to function is
valuable. However, social goals are being recognised as increasingly important and it is important for any effective consumer protection policy
to address both.

Who is a consumer?
Describing something as a consumer protection statute implies that there
is someone who can be identified clearly as a consumer. Although the
private buyer of goods is perhaps our paradigmatic consumer, she has
been joined by a wealth of other economic actors who can lay claim to
forming part of that diverse group. As a result, there is the initial difficulty
of identifying our subject matter. The first point to note is that there is no
universally agreed definition of the term consumer, although a number
of statutes, both criminal and civil, attempt to define it for their own
purposes. One example of such a definition is found in s.20(6) of the
Consumer Protection Act 1987, which states:
consumer
(a) in relation to any goods, means any person who might wish to be
supplied with the goods for his own private use or consumption;
(b) in relation to any services or facilities, means any person who might
wish to be provided with the services or facilities otherwise than for
the purposes of any business of his; and
(c) in relation to any accommodation, means any person who might wish
to occupy the accommodation otherwise than for the purposes of any
business of his.
Another example is contained in s.12 of the Unfair Contract Terms
Act 1977. This states that a party to a contract deals as a consumer if
(a) he neither makes the contract in the course of a business nor holds
himself out as doing so; and (b) the other party does make the contract in
3

Iain Ramsay, Rationales for Intervention in the Consumer Marketplace (London, Office of
Fair Trading, 1984), p. 12.

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the course of a business. Regulation 2 of the Unfair Terms in Consumer

Contracts Regulations 1999 provides a further approach, describing a
consumer as a natural person who, in making a contract to which these
Regulations apply, is acting for purposes which are outside his business.
These definitions suggest that the consumer is a private individual acting
in a private capacity. A further paradigm of consumer protection statutes
is that the defendant must act in the course of a trade or business.4 However, some UK statutes which would undoubtedly be regarded as examples of consumer protection legislation fall outside this description. For
example, the Trade Descriptions Act 1968 prohibits the supply of false
and misleading information in business to business transactions.5 There
is also a suggestion that the Act might prohibit misdescriptions applied
by private individuals, albeit in limited circumstances.6
It seems that the main characteristics of consumer protection statutes
are that the supplier acts in the course of a trade or business, the recipient is a private individual, and the recipient acts in a private capacity. It should be remembered that it is important not to limit the term
consumer to contracting parties, as that might exclude the ultimate
user of goods and services, such as the plaintiff in Donoghue v. Stevenson
whom Jolowicz describes as the laws best known consumer.7 Indeed,
it is possible to develop a much wider concept of the consumer than
has traditionally been envisaged.8 A private individual who receives services from a non-commercial state authority, such as the user of National
Health Service facilities or even the recipient of state benefit, might be
aptly described as a consumer. As Kennedy has stated, consumerism is
just as concerned with the supply of services as with goods. The consumer merely becomes the client, or patient, or whatever rather than
the shopper.9 We could even go as far as Ralph Nader, the American
consumer rights activist, and equate the word consumer with citizen. Scott and Black point out that the consumer interest is involved
whenever citizens enter relationships with bodies such as hospitals and
4
5
6
7
8

For discussion of the meaning of this see Richard J. Bragg, Trade Descriptions (Oxford,
Clarendon Press, 1991), ch. 2.
See Shropshire County Council v. Simon Dudley Ltd (1997) 16 Trading Law 69.
See Olgeirsson v. Kitching [1986] 1 WLR 304, although it is submitted that this case is
wrongly decided.
J. A. Jolowicz, The Protection of the Consumer and Purchaser of Goods Under English
Law (1969) 32 MLR 1, 1.
For discussion see I. Ramsay, Consumer Protection: Text and Materials (London, Weidenfeld and Nicolson, 1989), ch. 1 and C. Scott and J. Black, Cranstons Consumers and the
Law (3rd edn London, Butterworths, 2000), pp. 811.
I. Kennedy, The Unmasking of Medicine (The 1980 Reith Lectures) (London, Allen and
Unwin, 1981), p. 117. Cited in Ramsay, Consumer Protection, pp. 1112.

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libraries.10 The Molony Committee, which was set up in 1959 to consider and report on changes to consumer law, opined that the consumer is
everybody all of the time. However, the committee did not suggest this
as a working definition of the term, limiting their ambit to the purchase of
or obtaining on hire purchase goods for private use and consumption.11
This illustrates the numerous contexts in which an individual could be
regarded as a consumer. It is interesting to note that when the idea of
the Citizens Charter was taking shape, there was some discussion about
whether it should be referred to as the Consumers Charter. The former
title was agreed upon, as the term consumer was seen as narrow [and]
econocratic.12 Equating consumer with citizen has the benefit of enabling us to look beyond the narrow economic function of the consumer,
and to consider the individuals wider role in society. This is important
in areas such as financial services where a strict economic definition of
consumer might exclude private investors.13 It thus becomes easier to see
rights against the state as consumer issues. However, there is the danger
that the term consumer could become almost meaningless. Indeed, it
could be argued that the legacy of the Citizens Charter is that citizens
have increasing been treated as consumers, rather than consumers as
citizens.14
This book does not propose to offer a prescriptive definition of the
consumer. It is concerned to examine the way in which criminal law is
used in the context of consumer protection in the UK, but the UK has
no agreed definition of the consumer. Few could deny that the Trade
Descriptions Act 1968 and the Consumer Protection Act 1987 are properly described as consumer protection statutes, even though they take
different approaches to whom they protect. It is therefore suggested that
we should eschew a narrow definitional approach to the concept of the
consumer, recognising that statutes may legitimately take different approaches to this issue. Nevertheless, we should recognise that this book
is primarily concerned with those statutes which aim to protect the buyers of goods and services from the misbehaviour of traders and which use
the criminal law to do so.
10
11
12
13

14

See Scott and Black, Cranstons Consumers and the Law, pp. 811.
Board of Trade Final Report of the Committee on Consumer Protection (the Molony
Committee) Cmnd 1781/1962, para. 16.
S. Hogg and J. Hill, Too Close to Call: Power and Politics John Major in No. 10 (London,
Warner, 1995), p. 94.
See P. Cartwright, Consumer Protection in Financial Services: Putting the Law in
Context in P. Cartwright (ed.), Consumer Protection in Financial Services (Deventer,
Kluwer, 1999) and C. J. Miller, B. W. Harvey, and D. L. Parry, Consumer and Trading
Law: Text Cases and Materials (Oxford, Oxford University Press, 1998), pp. 56.
A. Barron and C. Scott, The Citizens Charter Programme (1992) 55 MLR 526.

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Consumer protection rationales

Consumer protection and the market system

The perfect market
When examining why we intervene in the market to protect consumers,
it is possible to take the so-called perfect market as a starting point.
This is helpful even if we doubt that such a system is attainable in reality. Free market economic theory suggests that if the characteristics of a
perfect market could be created, there would be no need for regulation.
In one of the leading studies, Rationales for Intervention in the Consumer
Market Place, Ramsay identifies the characteristics of the perfect market
as follows:
(i) there are numerous buyers and sellers in the market, such that the
activities of any one economic actor will have only a minimal impact
on the output or price of the market;
(ii) there is free entry into and exit from the market;
(iii) the commodity sold in the market is homogeneous; that is, essentially
the same product is sold by each seller in the particular market;
(iv) all economic actors in the market have perfect information about the
nature and value of the commodities traded;
(v) all the costs of producing the commodity are borne by the producer
and all the benefits of a commodity accrue to the consumer that
is, there are no externalities.15
Those who champion the idea of the perfect market see markets as
efficient and effective tools for maximising consumer welfare. The expressions free market economics and free market economists are used
in this context for want of a better term. It is recognised that this is not
a perfectly homogeneous group. This approach, which is associated primarily with the Chicago School, makes assumptions about the ways in
which markets operate.16 First, it assumes that individuals are rational
maximisers of their own satisfaction. In other words, they know what
they want, and will make logical, consistent choices in accordance with
their wishes. Secondly, it assumes that by their choices, consumers influence producers and so dictate the way that the market operates. By
making choices in accordance with their wishes, consumers send signals
to traders. If traders do not respond to these wishes they will lose custom
and, ultimately, be forced to exit the market. The consumer is therefore
sovereign.
15
16

Ramsay, Rationales, pp. 1516.

For a useful discussion see Scott and Black, Cranstons Consumers and the Law, pp. 269.

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The market system can be viewed as desirable for two main reasons.
First, it is economically desirable because it is efficient. Traders compete with each other to win custom, thereby raising standards and lowering prices. Secondly, it is seen as ideologically desirable that individuals
choices should be respected, rather than a choice made on their behalf
by the state. Indeed, many supporters of the free market seem as much
influenced by ideological matters as by efficiency arguments.17 The free
market recognises that different consumers are likely to be prepared to
endure different levels of product safety and quality for different amounts
of money. Where this is the case, a variety of products will be supplied
with different levels of quality and safety for different prices. It is for
consumers to act rationally in accordance with their own preferences
and decide upon the level of safety or quality that they are prepared to
purchase.
The perfect market only exists where the requirements set out in Ramsays list are met, although we may still have competitive markets where
not all are present. If we have numerous buyers and sellers competing
with each other, no individual trader should be able to influence price
appreciably by varying output.18 By ensuring that there is free entry into
and exit from the market, we ensure that anyone who wishes to enter a
particular market may do so, and that anyone who does not respond to
consumer demand will be forced to exit the market. By having perfect
information, we ensure that the choices that consumers make are fully
informed, and so likely to give effect to their true wishes. Where externalities do not occur we can be sure that only the parties to a transaction are
affected by that transaction, and so the price of the transaction reflects
its value to the parties. Free market economics tells us that where these
factors are present there is no need for the state to intervene. However,
that does not mean that the state has no role in the free market, as we
will now see.
The market, the state, and the law
Although free market economics is frequently associated with rolling back
the frontiers of the state, this does not mean that the free market requires
the state to lose its role in all areas.19 On the contrary, for the market
17

18
19

See C. Fried, Contract as Promise: A Theory of Contractual Obligation (Cambridge, Mass.,

Harvard University Press, 1981) and P. S. Atiyah, The Liberal Theory of Contract in
P. S. Atiyah, Essays on Contract (Oxford, Clarendon Press, 1990), p. 121.
F. M. Scherer, Industrial Market Structure and Economic Performance (2nd edn, Boston,
1980), p. 10.
Andrew Gamble, The Free Economy and the Strong State: The Politics of Thatcherism (2nd
edn, Basingstoke, Macmillan, 1994), ch. 2.

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to function effectively it is vital that the state retains its strength. Frank
Knight observed that the [market] system as a whole is dependent upon
an outside organisation, an authoritarian state . . . to provide a setting in
which it can operate at all.20 The state should, therefore, not be seen
as an alternative to the market, but as an essential part of the market
system. Hutchinson similarly comments that [w]ithout a state willing
or able to define and protect property rights, enforce contracts and prevent involuntary transactions, maintain a circulating medium, and curtail
monopoly and anti-competitive behaviour, there is no market in any real
or meaningful sense.21 The state is therefore vital to set up and enforce
the structure in which the market operates. This is done through the
mechanism of law. Law determines the rules of the game in the first
place, and acts as an umpire to interpret and enforce those rules.22 For
example, competition/anti-trust law ensures that markets are open and
that competition exists. Property law sets out the rules of property and so
determines rights of ownership, and explains how title can pass. Criminal law ensures that such rights are protected. As the market is premised
upon the importance of exchange, the rules of contract law have to be
set out. There is no inherent conflict between a strong state, strong laws,
and the free market.
Although the state has to be strong for the market system to function
effectively, the state only imposes its views on citizens in order to ensure
that parties are held to their agreements. It is individuals choices that
count, rather than those of the state. As a consequence, laws prohibiting
fraud and force are seen as protecting the private rights of citizens rather
than enforcing the states aims on those citizens.23 The prime method by
which choices can be demonstrated and effected is through the private
law of contract. The next section considers the use of the private law to
protect consumers within the context of the market. It focuses on the
role and limitations of the law of contract, but also considers the place of
the law of tort. Although contract law could be viewed as a technique of
regulation, and so might be thought of as more appropriately placed in our
discussion of techniques of regulation, its almost symbiotic relationship
with the market has led it to be considered here.24
20
21

22
23
24

F. Knight, Some Fallacies in the Interpretation of Social Cost (1924) 38 QJEcon 582
at 606.
A. Hutchinson, Life After Shopping: From Consumers to Citizens in I. Ramsay (ed.),
Consumer Law in the Global Economy (Aldershot, Dartmouth and Ashgale, 1997), p. 25
at p. 31.
See M. Friedman, Capitalism and Freedom (Chicago, Chicago University Press, 1962).
See J. Raz, Promises in Morality and Law (1982) 95 Harvard LR 916.
For an excellent examination of contract law as a form of regulation see H. Collins,
Regulating Contracts (Oxford, Oxford University Press, 1999).

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Consumer protection and the criminal law

The use and limitations of private law

The role of contract
The law of contract is central to the effective working of the market. Contracts provide a mechanism through which individuals can express their
preferences, create agreements with others, and ensure that those agreements are fulfilled. Contract law provides a framework through which
the market can function. The classical theory of freedom of contract has
been central to the development of contract law and its relationship with
the market. As Sir George Jessel famously argued: [i]f there is one thing
which more than another public policy requires it is that men of full age
and competent understanding shall have the utmost liberty of contracting, and that their contracts entered into freely and voluntarily shall be
held sacred and shall be enforced by courts of justice.25 Although championed by the New Right in the 1980s, classical theory was originally associated with left-wing movements in the nineteenth century, concerned
that the people should be allowed control over their destinies.26
Classical theorys emphasis on freedom of contract is a natural consequence of putting faith in the market. Consumer sovereignty demands
the means by which the consumer can exercise choice. If we accept that
consumers are rational maximisers of their own satisfaction, then it is
logical that they should decide the transactions into which they wish
to enter, and the terms upon which those transactions will be entered.
Intervention by the state beyond that agreed by the parties is therefore
anathema to the traditional idea of contractual freedom. Classical theory
was characterised by free dealing and non-intervention in substantive
matters. It was concerned with fairness, but primarily in relation to procedure rather than substance, acting as an umpire to be appealed to
when a foul is alleged.27 However, it is a moot point whether the law
of contract ever championed the kind of freedom to which Sir George
Jessel alluded. Despite the significant extent to which classical theory has
been emphasised in writing, some commentators question how influential it was in practice. Reiter refers to Jessels view as simply wrong,28
and Atiyah notes several ways in which contractual freedom was limited,
25
26
27

28

Printing and Numerical Registering Co. v. Sampson (1875) LR 19 Eq 462 at 465.

See P. S. Atiyah, Freedom of Contract and the New Right in Atiyah, Essays on Contract,
p. 355 at p. 357.
P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford, Clarendon Press, 1979),
p. 404. For an even stronger defence of individual autonomy see R. Nozick, Anarchy,
State and Utopia (Oxford, Blackwell, 1974).
B. Reiter, The Control of Contract Power (1981) 1 OJLS 347.

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even in the so-called heyday of classical theory.29 Nevertheless, the philosophy of classical theory was influential, and can be used to explain
many of the characteristics of twentieth-century contract law.
Classical theorys aversion to intervention on the grounds of substantive fairness can be justified on a number of different grounds. Collins
identifies four main propositions which underlie this, none of which convinces him.30 It is worth saying a few words about these, as they provide both an authoritative summary of the key characteristics of classical
theory and a useful critique of its principal arguments.
First, classical theorys adherents argue that most instances of apparent unfairness turn out to be illusory. For example, most terms which
appear to be unfair will be balanced by corresponding benefits, such as a
reduction in price. As a result, it is difficult to determine that a voluntary
exchange is unfair.31 Collins accepts that we should not jump to conclusions concerning the unfairness of transactions, and that unfair contracts
are more difficult to detect than might first be thought. However, he
recognises that unfair contracts do exist, and that the important point is
to engage in a detailed examination of the particular circumstances of the
transaction, and to take the whole picture into account.32
Secondly, it has been argued that approaches which allow contracts
to be challenged on the basis of fairness will make it more difficult
to construct markets, a prime aim of contract law. Several statutes allow contracts to be challenged on the basis of substantive unfairness,
although different terms are used in different contexts. For example,
the Unfair Terms in Consumer Contracts Regulations 1999 allow the
courts to strike down a term in a consumer contract which contrary
to the requirement of good faith causes a significant imbalance in the
parties rights and obligations under the contract to the detriment of
the consumer. Also s.137(1) of the Consumer Credit Act 1974 allows
a consumer to challenge a credit bargain on the grounds of its being extortionate. Although these provisions look appealing from the point of
view of equity, there is an argument that they create uncertainty for the
contracting parties, which makes it difficult for those parties to predict
how their transactions will be judged. Collins questions this. First, he
argues that business people do not regard planning documents as central to transactions and that as a result of this, uncertainty about legal
29
30
31
32

Atiyah, The Rise and Fall of Freedom of Contract.

Collins, Regulating Contracts, ch. 11.
See M. J. Trebilcock, The Doctrine of Inequality of Bargaining Power: Post Benthamite
Economics in the House of Lords (1976) 26 University of Toronto Law Journal 359.
Regulating Contracts, pp. 2589.

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enforceability will seldom affect entry into transactions.33 Secondly, he

suggests that business people place great emphasis on their expectations,
represented by such factors as the long-term business relation and the
customs of the trade. As a result, general clauses such as good faith may
be helpful in allowing decisions to be made in accordance with expectations. He concludes that most commercial parties would expect the
legal system to decline to enforce terms in the planning documents that
impose extremely harsh bargains.34
The third argument that could be used to criticise intervention is that
where the law attempts to regulate fairness, this tends to backfire. Epstein
puts forward this view in the context of intervention on the grounds of
unconscionability: [w]hen the doctrine of unconscionability is used in
its substantive dimension, be it in a commercial or consumer context, it
serves only to undercut the private right of contract in a manner that is apt
to do more social harm than good.35 One example that has been given
is that the setting of interest-rate ceilings may exclude poor consumers
from the market altogether.36 Another is that minimum-wage laws may
lead to employers employing fewer people. Collins suggests that this will
depend on the market in question, and points out that there is some
empirical evidence that measures such as minimum-wage laws have led
to a decrease in unemployment.37 The evidence of the effects of minimum
standards of this sort is ambivalent.38
Finally, it is sometimes argued that where genuine unfairness does
occur, the most effective remedy will be to tackle the market failure that
caused it. The issue of market failure is examined in some detail below
and so is not considered in detail here. Suffice it to say that steps which
correct market failure are desirable in helping the market to function, for
example by generating competition and correcting information deficits.
However, they cannot create perfect markets and will be limited in the
extent that they protect consumers, particularly the most vulnerable.
Collins concludes that regulation of unfair contracts can be desirable,
and that such measures comprise an important ingredient of the legal
system. He favours both open textured rules rooted in private law, and
33
34
35
36
37
38

Ibid. p. 269.
Ibid. p. 271.
R. Epstein, Unconscionability: A Critical Reappraisal (1975) 18 Journal of Law and
Economics 293 at 315.
See D. Cayne and M. J. Trebilcock, Market Considerations in the Formulation of
Consumer Protection Policy (1973) 23 University of Toronto Law Journal 396.
D. Card and A. B. Krueger, Myth and Measurement: The New Economics of the Minimum
Wage (Princeton, N. J., Princeton University Press, 1995).
See A. Leff, Unconscionability and the Crowd: Consumers and the Common Law
Tradition (1970) 31 University of Pittsburgh Law Review 349.

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11

public regulation. Many other commentators doubt whether intervention

has the harmful effects that have been suggested.39 If we accept that intervention may be valid, for example in order to help ensure fairness for the
consumer, our next step is to examine some of the ways that intervention
in contract law can take place.
Intervention in contract
Under the classical notion of contract the focus of control was upon
procedural matters. As a result, doctrines of duress, fraud, and misrepresentation developed.40 Attempts to tackle the fairness of the substance
of contract law were more limited. More recently, however, we have seen
increased statutory intervention in the substance of contract law, both by
removing undesirable terms and imposing desirable terms.41 Examples
of the former are found in, for example, the Consumer Credit Act 1974,
the Unfair Contract Terms Act 1977, and the Unfair Terms in Consumer
Contracts Regulations 1999, and of the latter are found in inter alia the
Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982.
The Unfair Contract Terms Act 1977 is concerned primarily with exemption clauses, invalidating some, and subjecting others to a test of
reasonableness. The Unfair Terms in Consumer Contracts Regulations
1999 provide, inter alia, that a term shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance
in the parties rights and obligations arising under the contract, to the
detriment of the consumer. Both pieces of legislation allow certain terms
to be challenged on the grounds of fairness. The Consumer Credit Act
1974 also allows terms to be challenged on the basis of substantive unfairness. Section 137(1) of the Act allows the court to re-open a credit
agreement so as to do justice to the parties, where it finds a credit bargain to be extortionate. There are weaknesses with this provision, and
suggestions have been made for its reform. In particular, it suffers from
the requirement that the victim has to commence the action. By contrast,
under the Unfair Terms in Consumer Contracts Regulations, it is possible for interested groups, such as the Consumers Association, utilities
regulators, and the Director General of Fair Trading, to challenge terms
on the grounds of fairness.
39
40

41

See M. A. Eisenberg, The Bargain Principle and its Limits (1982) Harvard LR 741
and Gordley, Equality in Exchange (1981) 69 Cal LR 1587.
It has also been possible to create a strict test of incorporation of terms to ensure that
particularly unfair terms are not deemed part of the contract. See Interfoto Picture Library
Ltd v. Stiletto Visual Programmes Ltd [1988] 2 WLR 615.
Although common law notions such as undue influence have also become more visible.

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When examining implied terms it is helpful to draw a distinction between two situations. First, terms can be implied to give effect to the
wishes of the parties. We can classify these terms as those implied in fact.
For example, it may be clear that the parties intended a particular term
to be part of the contract, but did not explicitly include it. Where this is
done, it can be said to be in accordance with the market system and the
philosophy of contractual freedom, as the court is merely giving effect to
the intention of the parties.42 The second situation is where terms are implied in law. These implied terms, such as those under the 1979 Act, are
mandatory, and so cannot be excluded by the parties. They are therefore
implied, not to reflect the wishes of the parties, but to reflect the wishes
of the state.43 Although it might be possible to argue that mandatory
implied terms reflect the standards that the parties would have agreed
to had they been able to negotiate on the basis of full information, this
does not appear to be the basis on which they are implied in reality. The
Sale of Goods Act 1979 provides a useful illustration of how terms may
be implied in law. For example s.14 of the Act requires that goods be of
satisfactory quality and reasonably fit for their purpose. Section 14(2A)
states that goods are of satisfactory quality if they meet the standard
that a reasonable person would regard as satisfactory, taking account of
any description of the goods, the price (if relevant) and all other relevant
circumstances. The standard is intentionally vague, allowing the courts
to determine what is reasonable in all the circumstances. Section 14(2B)
provides a list of factors that may be considered where relevant, such as
freedom from minor defects, safety, and durability.
English law does not have a general requirement for terms to be fair.
Lord Denning made some steps towards such a provision in the famous
case of Lloyds Bank v. Bundy, but there remains no general test of fairness.44 There have been suggestions that the law might impose a general duty to trade fairly, or create a general provision which would allow
contracts to be challenged on the basis of extreme unfairness, perhaps
couched in terms of unconscionability. The traditional free market arguments against such measures have been set out above, but they fail
to convince. There are good reasons to be wary of re-writing contracts,
but there are sound reasons for challenging provisions that are so unfair that we can classify them as unconscionable. One reason is that it is
42
43
44

Although it could be argued that, in reality, the courts imply terms, not on the basis of
the parties intention, but on the basis of how the parties should behave.
For a discussion of paternalism in consumer law see below.
[1974] 3 All ER 757. This can be contrasted with s.2302 of the Uniform Commercial
Code in the USA which gives a power to the courts to refuse to enforce a clause or
contract that is unconscionable.

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difficult to separate matters of procedure from matters of substance. The

willingness of classical theory to challenge contracts on the grounds of
procedural unfairness but not substantive unfairness assumes that there
is a clear distinction between the two. This is not always so. The point
is well put by Kronman when he explains the different advantages one
party may enjoy over another and which make the transaction unfair:
the advantage may consist in his superior information, intellect, or judgment, in
the monopoly he enjoys with regard to a particular resource, or in his possession
of a powerful instrument of violence or a gift for deception. In each of these cases,
the fundamental question is whether the promisee should be permitted to exploit
his advantage to the detriment of the other party.45

Viewed this way, the distinction between procedural and substantive

unfairness is muddied. If a consumer finds himself to be the victim of
a substantively unfair bargain we look to see why he entered it. We can
nearly always point to some procedural factor which has made the resulting contract unfair, but some of these we accept (such as greater
knowledge or skill in bargaining) while others we do not accept (such as
deception or violence). Part of the task of consumer law is to determine
which factors can be taken into account and when. This is a difficult task.
Atiyah offers a word of caution against the belief that we can wholly separate our ideas of fair procedures from our ideas of fair results.46 He
goes so far as to conclude that when there is some gross imbalance,
something serious enough to offend our sense of justice, it will usually
be found that some remedy is available.47 This brings us to a second
argument in favour of having a general power to intervene on grounds of
unfairness. Although there are techniques that allow the courts to intervene on grounds of fairness, would it not be more desirable to create a
transparent rule which allows them to do this openly, rather than under
the guise of some other doctrine? The Unfair Terms in Consumer Contracts Regulations have certainly gone some way towards allowing unfair
terms to be removed, but as we have seen, they are subject to important
limitations. A general rule against unconscionability, or a general duty to
trade fairly would, it is submitted, be desirable, provided it was clearly
formulated. This is considered in more detail in chapter 6.
Freedom of contract provides a degree of protection to the consumer,
but experience has shown that consumers cannot be expected to fulfil
the role attributed to them by market theory. Intervention in the law
of contract in the way mentioned above has made significant inroads
45
46
47

A. Kronman, Contract Law and Distributive Justice (1980) Yale LJ 472 at 480.
P. Atiyah, Contract and Fair Exchange in Essays on Contract, p. 329 at p. 333.
Ibid. p. 338.

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into the notion of contractual freedom and has done much to improve
consumer protection. However, it should be remembered that contract
law suffers from certain limitations which mean that it is unable always to
provide an appropriate degree of protection for the consumer. The main
limitations are the doctrine of privity and the existence of transaction
costs.
Contract and privity
A major limitation in the ability of the law of contract to protect consumers is the doctrine of privity of contract. The doctrine states that, in
general, a contract cannot confer rights or impose obligations on someone
who is not party to that contract.48 For example, a consumer cannot generally sue a manufacturer in contract for producing faulty goods (vertical
privity), nor can he sue a retailer in contract for supplying faulty goods
which were purchased on his behalf by a friend (horizontal privity). There
has been criticism of the doctrine and both academic and judicial support for reform. In Darlington Borough Council v. Wilshier Northern Ltd
Steyn LJ argued that there is no doctrinal, logical, or policy reason why
the law should deny effectiveness to a contract for the benefit of a third
party where that is the expressed intention of the parties.49 If the law of
contract is seen as having among its functions a deterrent role, it will be
important that the person who is best able to determine the characteristics of a product is subject to liability. In some cases, it will be impossible
to sue the retailer, for example if he has become insolvent or cannot be
traced, and so the consumer may be left without a remedy. The consumer
will only have a remedy against the manufacturer in tort if the product is
not merely defective, but dangerous.50 There may be some cases where
the court will find a collateral contractual relationship between manufacturer and purchaser, and bypass privity rules, but such situations will be
rare.51 The law relating to privity was recently reformed by the Contracts
(Rights of Third Parties) Act 1999. This followed the Law Commission
Report Privity of Contract: Contracts for the Benefit of Third Parties,52 and
has made it easier for consumers to take action. The main change is that
a third party may now enforce a contractual provision, either if the contract contains an express term to that effect, or if it purports to confer a
48
49

50
51
52

See for example Tweddle v. Atkinson (1861) 1 B&S 393.

[1995] 1 WLR 68. Mitchell describes privity as a rule which is almost universally
regarded as unjust. See C. Mitchell, Privity Reform and the Nature of Contractual
Obligations (1999) 19(2) Legal Studies 229 at 230.
But see the wording of Part I of the Consumer Protection Act 1987.
See for example, Carlill v. Carbolic Smoke Ball Co. Ltd [1893] 1 QBD 256.
Law Commission Report no. 242, 1996.

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benefit upon him. The third party, in these circumstances, will be given
rights as though he were party to the contract. It is not proposed to go
into detail about the changes here.53 The Act does protect consumers in
specific circumstances, but leaves the doctrine largely intact.
Tort
In 1951 Glanville Williams identified the principal aims of tort as: appeasement, justice, deterrence, and compensation.54 There will be both
conflicts and overlaps between these aims, and they are by no means
exhaustive. Jones argues, for example, that we should add loss distribution and economic efficiency to the list.55 The effect of tort law is to
transfer resources from one party to another in order to return the victim to her position prior to the commission of the tort. The rules of
tort law provide a framework for establishing when and how this can be
done. If looked at from an economic point of view, tort liability rules
provide an incentive for producers to take cost-effective measures to prevent defects. Some of the limitations inherent in the law of contract can
be addressed through the law of tort. For example, the consumer who
is given a defective product by a friend and suffers injury will have a
right of redress against the producer of that product in the law of tort,
either under the tort of negligence or Part I of the Consumer Protection Act 1987. However, tort law is subject to its own limitations which
may place obstacles in the way of consumers obtaining access to justice.
Whereas contract law is concerned primarily with agreements made by
the parties, tort law imposes duties irrespective of the parties intentions,
and irrespective of any contractual relationship.56 This may seem to be
wider than contract, but in some ways it will not be so. First, tort liability
often only arises where the plaintiff can prove fault. Under Donoghue v.
Stevenson a manufacturer owes a duty of care in negligence to the ultimate consumer of the manufacturers product.57 However, this duty will
only give rise to liability where it has been breached: that is, where the
plaintiff can prove fault against the manufacturer. Unlike strict liability in
53

54
55
56
57

For material discussing the proposed changes, see e.g. Mitchell, Privity Reform, J.
Adams, D. Beyleveld, and R. Brownsword, Privity of Contracts The Benefits and
Burdens of Law Reform (1997) 60 MLR 238, F. Reynolds, Privity of Contract (1997)
113 LQR 53 and S. Smith, Contracts for the Benefit of Third Parties: In Defence of
the Third Party Rule (1997) 17 OJLS 643.
G. Williams, The Aims of the Law of Tort (1951) 4 CLP 137.
See M. Jones, Textbook on Torts (4th edn, London, Blackstone Press, 1993), p. 14.
Although there will be occasions when tort law depends on the parties entering into a
relationship, for example, in relation to negligent statements or liability of employers.
[1932] AC 562.

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contract, this is often difficult to establish. Secondly, the law of tort does
not, in general, allow recovery for pure economic loss. If a consumer
buys a defective washing machine the consumer will be able to recover
damages from the supplier in contract. If the washing machine had been
given to the consumer as a present, he would not be able to seek redress,
either from the supplier or the manufacturer. This is because the consumer is not part of a contractual relationship, and there is no general
right in tort to recover damages for the cost of putting a product right,
which is classified as pure economic loss. This contrasts with the situation where the washing machine burns a hole in the consumers kitchen
floor. Here the consumer would be able to recover damages for the cost
of correcting that as the product has caused property damage outside
itself.
Just as there has been state intervention in the law of contract, so
there has been in the law of tort. Since the implementation of Part I of
the Consumer Protection Act 1987 there has been strict liability for defective products and so seeking compensation for injury caused by defective
products is, in theory at least, easier than before the Act. However, the
dearth of case law on Part I and the width of the development risks defence raise doubts about the extent to which the provision has improved
consumer protection in practical terms. To a large extent, seeking redress
under the law of tort remains illusory for many consumers.
Private law and transaction costs
Perhaps the main limitation of private law is that it relies upon the victim for its enforcement. A rational individual will not enforce the law
unless the expected benefit exceeds the expected cost, and in the case
of many consumer disputes the costs of ensuring redress will be prohibitive. These transaction costs, in particular enforcement costs, pose
the greatest obstacle to consumers ability to rely on the market for protection. Transaction costs include search costs, and bargaining costs, as
well as enforcement costs. The difficulties of securing optimal information through search are dealt with in detail later in this chapter.58 Difficulties presented by bargaining costs are obvious. Consumers often do
not have the time, skills, or inclination to bargain effectively and make
informed decisions accordingly. But it is in relation to enforcement costs
that we see particular difficulties. Litigation is time-consuming, uncertain, and expensive, particularly as costs have traditionally been paid by
the unsuccessful party. These obstacles are compounded by other factors.
58

See below, p. 20.

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First, many difficulties of substantive law face the consumer. Problems of

establishing causation where there has been personal injury, and of showing fault where the action is in negligence, are obvious examples. These
obstacles increase the likelihood that an action will be unsuccessful, and
so the risks involved in taking action. Secondly, private law remedies will
only be effectively utilised where consumers are aware of their rights.59
There can be little doubt that steps have been taken to improve awareness, with publications such as Which? and television programmes such
as Watchdog informing consumers of action they can take, but there is still
a long way to go. The Office of Fair Trading (OFT) has long regarded
the publication of booklets and leaflets to explain consumer rights as
one of its key functions, and there is evidence that techniques such as
distributing leaflets can be beneficial.60 Furthermore, it is interesting to
note that the Financial Services Authority, which has been given the responsibility for regulating financial services in the UK, has, as one of its
regulatory objectives, public awareness, alongside the more traditional
objectives for a financial regulator of market confidence, protection of
consumers, and reduction of financial crime. The Authority has said that
it will work alongside government departments, business and consumer
groups to promote financial literacy, consumer information, and advice.
The importance of consumer awareness has also been recognised at an international level. The UN Guidelines for Consumer Protection state that
[g]overnments should develop or encourage the development of general
consumer education and information programmes and that [c]onsumer
education should, where appropriate, become an integral part of the basic curriculum of the educational system. . . .61 There can be little doubt
that ignorance of the law is one of the principal impediments to consumer protection and that measures to eradicate this ignorance will be an
important part of an effective consumer policy.
A further matter for concern with private law is that it may have undesirable distributive effects. Wilhelmsson has argued that by emphasising
individual claims consumer law reproduces injustice. As litigation will
generally only be undertaken by more affluent and better-educated consumers, only they will be protected effectively.62 This is examined later in
59

60
61
62

See the discussion of consumer education in H. Beales, R. Craswell, and S. Salop, The
Efficient Regulation of Consumer Information (1981) 24 Journal of Law and Economics
49.
H. Genn, Meeting Legal Needs? An Evaluation of a Scheme for Personal Injury Victims
(Oxford, Centre for Socio-Legal Studies, 1982).
It is interesting to note the UK Governments decision to have citizenship taught in
schools as part of the National Curriculum in the light of this.
Wilhelmsson, Consumer Law and Social Justice in Ramsay (ed.), Consumer Law in the
Global Economy, p. 217.

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the context of discussing social justice. Recent developments in the civil

justice system have been designed to improve access to justice for less
affluent consumers, for example, raising the limit of the county courts
small claims procedure, and streamlining case management, but the extent to which they are likely to be successful is unclear.63 Leff s observation that one cannot think of a more expensive and frustrating course
than to seek to regulate goods or contract quality through repeated law
suits against inventive wrongdoers rings true.64
Market failure
It is widely accepted that the perfect market considered above does not
exist in reality, and it is clear that the private law on which it is based
suffers from limitations that make it an inadequate basis for protecting
consumers. Howells and Weatherill describe the idea of the perfect market
as being as alluring as it is unrealistic65 and Cranston has likened the
free market economist to the foolish man who built his house upon the
sand.66 Certainly, the characteristics of the perfect market could never, it
is submitted, be created in their entirety. However, this does not mean that
discussing free markets is pointless. One possible consumer protection
policy would be to try to create, as far as is possible and cost effective,
the conditions of a perfect market. The next section looks at the reasons
why market failure might occur and considers the appropriate responses
that the law might make to this.
Absence of competition
Markets may fail through the absence of competition. If the market is
to function effectively, it is important that no individual firm or group
of firms has sufficient power to influence price. However, [t]he notion
that rival suppliers must dance to the consumers tune is false where the
consumers influence is thwarted because of a lack of competition.67 The
63
64

65
66

67

See Scott and Black, Cranstons Consumers and the Law, pp. 11020.
A. A. Leff, Unconscionability and the Crowd Consumer and the Common Law
Tradition (1970) 31 University of Pittsburgh Law Review 349 at p. 356. However, it
may not be as expensive as public regulation. See S. Shavell, Liability for Harm Versus
Regulation of Safety (1984) 13 J Legal Stud 357.
G. G. Howells and S. Weatherill, Consumer Protection Law (Aldershot, Dartmouth and
Ashgale, 1995), p. 1.
R. Cranston, Consumer Protection Law and Economic Theory in A. J. Duggan and
L. W. Darvall (eds.), Consumer Protection Law and Theory (Sydney, The Law Book
Company, 1980), p. 243.
Howells and Weatherill, Consumer Protection Law, pp. 23.

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law can play an important role in avoiding monopolies and, in particular, in controlling abuse of a monopolistic or oligopolistic position. This
could be done by removing behavioural restrictions such as cartels, and
structural restrictions such as monopolies themselves. In practice, it may
be unrealistic to expect perfect competition. In some cases there will be
natural monopolies, where it is less costly to society for production to
be carried out by one firm than by several.68 There are different ways of
responding to this, and it is not possible to examine them in any detail
here.69 Suffice it to say that some markets will be subject to structural
problems that make having numerous competitors unrealistic. Indeed,
competition may even be undesirable, for example if it discourages innovation because of the risk of competitors taking up a product developed
by their rival. Laws of intellectual property are thus used to suppress
competition in the broader public interest. For these reasons, the aim is
often said to be workable rather than perfect competition. Although
the former term could be criticised as unduly vague and flexible, it is
submitted that it reflects a realistic approach to what can, and should, be
achieved by way of competition.70
Barriers to entry
Free entry and exit are aspects of the market over which governments
have a significant amount of control. Subject to international obligations,
it would be possible to allow any trader who wishes to do so to enter a
particular market, and to allow that traders business to fail if unsuccessful. In reality, governments elect to impose barriers to entry and exit in
certain sectors of the economy. Barriers to entry are generally imposed
through prior approval schemes. For example, banks must be authorised
by the Financial Services Authority, and anyone accepting a deposit from
the public without authorisation commits an offence.71 Prior approval
is seen as justified because of the risks to consumers from unauthorised
banks, who may be poorly capitalised, and the risk to the financial system
at large from bank failure. Although prior approval has been the subject
of criticism, it is widely viewed as an essential element of the banking
regulatory framework.72 Governments show an equal reluctance to allow free exit from the market where banks are concerned. A bank whose
68
69
70
71
72

A. I. Ogus, Regulation: Legal Form and Economic Theory (Oxford, Clarendon Press,
1994), p. 30.
See Ogus, ibid. pp. 303.
See Howells and Weatherill, Consumer Protection Law, pp. 4434.
Banking Act 1987.
See for example K. Dowd, Laissez-Faire Banking (London, Routledge, 1993).

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failure is thought to have implications for the soundness of the financial

system will not be allowed by governments to exit the market through insolvency the so-called too big to fail doctrine. There will be arguments
against free entry in other areas too, particularly where the risks posed
by a particular sector are seen to be great, such as pharmaceuticals.73
Although free entry and exit are seen as characteristics of the perfect
market, they are characteristics which governments, in general, are not
prepared to endure in all sectors. Indeed, it is interesting to note that a
recent report for the OFT argued that misleading and false information
is particularly likely to be provided where barriers to entry and exit are
relatively small.74 A final point to note is that barriers to entry are not
only imposed by governments through prior approval schemes. In some
cases, there will inevitably be high entry costs to an industry, for example
if a new business has to lay new pipelines for the supply of water or gas.
This, too, will make it difficult for new business to enter the market and
so will limit the benefits of competition.
Product homogeneity
The requirement of product homogeneity is closely linked to that of
perfect information. The market is said to fail where there are qualitative
differences within a particular product market, such that consumers are
unable to compare like with like. This is most relevant in the context
of advertising. Traders can use artificial product differentiation to create
illusory differences between similar products, for example through brand
advertising.75 This is considered in relation to information below, and in
relation to the protection of economic interests in chapter 6.
Information deficits
One of the characteristics of the perfect market is that economic actors,
including consumers, have perfect information about the nature and
value of commodities traded. In reality, we know that consumers can
face difficulties in obtaining and using information about products they
are considering purchasing. They may suffer from information asymmetry in that they know less than another party (generally the supplier)
and will frequently suffer from some information imperfections (in the
73
74
75

See ch. 5.
Consumer Detriment Under Conditions of Imperfect Information (Office of Fair Trading
Research Paper II, August 1997), p. 103.
See I. Ramsay, Advertising, Culture and the Law: Beyond Lies, Ignorance and Manipulation
(London, Sweet and Maxwell, 1996), pp. 67 and 3040.